SUNE Settlement

16-10992-smb Doc 3703 Filed 07/24/17 Entered 07/24/17 22:44:49 Main Document
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SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP

Jay M. Goffman
J. Eric Ivester
Four Times Square
New York, New York 10036-6522
Telephone: (212) 735-3000
Fax: (212) 735-2000
-and-
James J. Mazza, Jr. (admitted pro hac vice)
Louis S. Chiappetta (admitted pro hac vice)
155 N. Wacker Dr.
Chicago, Illinois 60606-1720
Telephone: (312) 407-0700
Fax: (312) 407-0411
Counsel for Debtors and Debtors in Possession
UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF NEW YORK
:
In re: : Chapter 11
:
SUNEDISON, INC., et al., : Case No. 16-10992 (SMB)
:
Debtors. 1 : (Jointly Administered)
:
1
The Debtors in these chapter 11 cases, along with the last four digits of each Debtors tax identification number are as
follows: SunEdison, Inc. (5767); SunEdison DG, LLC (N/A); SUNE Wind Holdings, Inc. (2144); SUNE Hawaii
Solar Holdings, LLC (0994); First Wind Solar Portfolio, LLC (5014); First Wind California Holdings, LLC (7697);
SunEdison Holdings Corporation (8669); SunEdison Utility Holdings, Inc. (6443); SunEdison International, Inc.
(4551); SUNE ML 1, LLC (3132); MEMC Pasadena, Inc. (5238); Solaicx (1969); SunEdison Contracting, LLC
(3819); NVT, LLC (5370); NVT Licenses, LLC (5445); Team-Solar, Inc. (7782); SunEdison Canada, LLC (6287);
Enflex Corporation (5515); Fotowatio Renewable Ventures, Inc. (1788); Silver Ridge Power Holdings, LLC (5886);
SunEdison International, LLC (1567); Sun Edison LLC (1450); SunEdison Products Singapore Pte. Ltd. (7373);
SunEdison Residential Services, LLC (5787); PVT Solar, Inc. (3308); SEV Merger Sub Inc. (N/A); Sunflower
Renewable Holdings 1, LLC (6273); Blue Sky West Capital, LLC (7962); First Wind Oakfield Portfolio, LLC (3711);
First Wind Panhandle Holdings III, LLC (4238); DSP Renewables, LLC (5513); Hancock Renewables Holdings,
LLC (N/A); EverStream HoldCo Fund I, LLC (9564); Buckthorn Renewables Holdings, LLC (7616); Greenmountain
Wind Holdings, LLC (N/A); Rattlesnake Flat Holdings, LLC (N/A); Somerset Wind Holdings, LLC (N/A); SunE
Waiawa Holdings, LLC (9757); SunE MN Development, LLC (8669); SunE MN Development Holdings, LLC
(5388); SunE Minnesota Holdings, LLC (8926); TerraForm Private Holdings, LLC (5993); Hudson Energy Solar
Corporation (3557); SunE REIT-D PR, LLC (5519); SunEdison Products, LLC (4445); SunEdison International
Construction, LLC (9605); Vaughn Wind, LLC (4825); Maine Wind Holdings, LLC (1344); First Wind Energy, LLC
(2171); First Wind Holdings, LLC (6257); and EchoFirst Finance Co., LLC (1607). The address of the Debtors
corporate headquarters is Two City Place Drive, 2nd floor, St. Louis, MO 63141.
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NOTICE OF FILING OF MODIFICATIONS TO PROPOSED CONFIRMATION

ORDER
PLEASE TAKE NOTICE that, on July 18, 2017, SunEdison, Inc. and certain of
its affiliates, the debtors and debtors in possession in the above-captioned cases (collectively, the
Debtors) filed the Debtors Memorandum Of Law (I) In Support Of Confirmation Of The First
Amended Joint Plan Of Reorganization Of SunEdison, Inc. And (II) In Response To Objections
Thereto [Docket No. 3649] (the Confirmation Brief),
PLEASE TAKE FURTHER NOTICE that, the Confirmation Brief included a
proposed form of confirmation order (the Proposed Confirmation Order), attached thereto as
Exhibit C.
PLEASE TAKE FURTHER NOTICE that, attached hereto as Exhibit A is a
subsequent draft of the Proposed Confirmation Order marked to show additional changes to the
earlier filed version and the Debtors will be requesting that these modifications be included in
the Proposed Confirmation Order in the event the Court confirms the Plan.
Dated: July 24, 2017

New York, New York
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
By: /s/ J. Eric Ivester

Jay M. Goffman
J. Eric Ivester
Four Times Square
New York, New York 10036-6522
Telephone: (212) 735-3000
Fax: (212) 735-2000
-and-
James J. Mazza, Jr. (admitted pro hac vice)
Louis S. Chiappetta (admitted pro hac vice)
155 N. Wacker Dr.
Chicago, Illinois 60606-1720
Telephone: (312) 407-0700
Fax: (312) 407-0411
Counsel for Debtors and Debtors in Possession
2
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EXHIBIT A
Modifications to Proposed Confirmation Order

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IN THE UNITED STATES BANKRUPTCY COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK
--------------------------------- x
:
In re: : Chapter 11
:
SUNEDISON, INC., et al., : Case No. 16-10992 (SMB)
:
Debtors.1 : (Jointly Administered)
:
:
--------------------------------- x
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER CONFIRMING

FIRSTSECOND AMENDED PLAN OF REORGANIZATION OF
SUNEDISON, INC. AND ITS DEBTOR AFFILIATES
The Court having considered the FirstSecond Amended Joint Plan of
Reorganization of SunEdison, Inc. (SUNE) and certain of its affiliates, the debtors and debtors
in possession in the above-captioned cases (collectively, the Debtors and, together with their
non-debtor affiliates, SunEdison or the Company or, as applicable after the Effective Date,
the Reorganized Debtors),2 dated as of June 12, 2017 [Docket No. 3314] (as may be amended
1
The Debtors in these chapter 11 cases, along with the last four digits of each Debtors tax identification number are as
follows: SunEdison, Inc. (5767); SunEdison DG, LLC (N/A); SUNE Wind Holdings, Inc. (2144); SUNE Hawaii
Solar Holdings, LLC (0994); First Wind Solar Portfolio, LLC (5014); First Wind California Holdings, LLC (7697);
SunEdison Holdings Corporation (8669); SunEdison Utility Holdings, Inc. (6443); SunEdison International, Inc.
(4551); SUNE ML 1, LLC (3132); MEMC Pasadena, Inc. (5238); Solaicx (1969); SunEdison Contracting, LLC
(3819); NVT, LLC (5370); NVT Licenses, LLC (5445); Team-Solar, Inc. (7782); SunEdison Canada, LLC (6287);
Enflex Corporation (5515); Fotowatio Renewable Ventures, Inc. (1788); Silver Ridge Power Holdings, LLC (5886);
SunEdison International, LLC (1567); Sun Edison LLC (1450); SunEdison Products Singapore Pte. Ltd. (7373);
SunEdison Residential Services, LLC (5787); PVT Solar, Inc. (3308); SEV Merger Sub Inc. (N/A); Sunflower
Renewable Holdings 1, LLC (6273); Blue Sky West Capital, LLC (7962); First Wind Oakfield Portfolio, LLC (3711);
First Wind Panhandle Holdings III, LLC (4238); DSP Renewables, LLC (5513); Hancock Renewables Holdings, LLC
(N/A); Everstream HoldCo Fund I, LLC (9564); Buckthorn Renewables Holdings, LLC (7616); Greenmountain Wind
Holdings, LLC (N/A); Rattlesnake Flat Holdings, LLC (N/A); Somerset Wind Holdings, LLC (N/A); SunE Waiawa
Holdings, LLC (9757); SunE MN Development, LLC (8669); SunE MN Development Holdings, LLC (5388); SunE
Minnesota Holdings, LLC (8926); Terraform Private Holdings, LLC (5993); Hudson Energy Solar Corporation
(3557); SunE REIT-D PR, LLC (5519); SunEdison Products, LLC (4445); SunEdison International Construction,
LLC (9605); Vaughn Wind, LLC (4825); Maine Wind Holdings, LLC (1344); First Wind Energy, LLC (2171); First
Wind Holdings, LLC (6257); and EchoFirst Finance Co., LLC (1607). The address of the Debtors corporate
headquarters is Two CityPlace Drive, 2nd floor, St. Louis, MO 63141.
2
For purposes herein, the definition of SunEdison, Company and Reorganized Debtors does not include
Terraform Power, Inc. and Terraform Global, Inc., and each of their respective direct and indirect subsidiaries,
Redline SunEConfirmation Order 1470035v4I and SunEConfirmation Order 1470035v5E

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or supplemented from time to time in accordance with its terms and including all exhibits and
supplements thereto, the Plan),3 and the First Amended Disclosure Statement for the First
Amended Joint Plan of Reorganization of SunEdison, Inc. and its Debtor Affiliates, dated as of
June 12, 2017 [Docket No. 3314] (as amended from time to time and including all exhibits and
supplements thereto, the Disclosure Statement); and upon the Order (A) Approving the
Adequacy of the Debtors Disclosure Statement, (B) Approving Solicitation and Notice
Procedures with respect to Confirmation of the Debtors Joint Proposed Plan, (C) Approving the
Form of Various Ballots and Notices in Connection Therewith, and (D) Scheduling Certain Dates
with Respect Thereto, entered on June 13, 2017 [Docket No. 3319] (the Disclosure Statement
Order); and upon the order entered on June 6, 2017 approving, among other things, the Rights
Offering Commitment Letter, the Equity Commitment Agreement, and certain procedures
associated with the Rights Offering (the Rights Offering Procedures) and the distribution of
materials in connection therewith [Docket No. 3283] (the Rights Offering Procedures Order);
and the Debtors having filed, on July 6, 2017, the Plan Supplement [Docket No. 3522], which
collectively contained Exhibits 2.1, 6.5, 6.15, 6.20, 7.1, 7.6, and 8.1 to the Plan, and on []July
19, 2017, certain amendments to the Second Plan Supplement [Docket No. []3661], which
contained a revised Exhibit 6.5 to the Plan, and the Third Plan Supplement [Docket No. 3673],
which collectively contained revised Exhibits []7.1 and 7.6 to the Plan; and the Debtors having
filed, on July 14, 2017, the Second Amendment to the Amended and Restated Equity
Terraform Power, Inc. and Terraform Global, Inc., and each of their respective direct and indirect subsidiaries,
unless otherwise provided.
3
Unless otherwise defined herein, capitalized terms used herein shall have the meanings ascribed to such terms in
the Plan, a copy of which is annexed hereto as Exhibit A.
2

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Commitment Agreement [Docket No. 3620] and the Debtors Motion for Entry of an Order
Authorizing and Approving Certain Amendments to the Rights Offering Procedures [Docket No.
3622]; and the Debtors having filed, on July [], 2017, [] amendments to the Plan Supplement
[Docket No. []]; and the Court on [July 20], 2017 and July 25, 2017 having held a
hearinghearings pursuant to section 1129 of the Bankruptcy Code to consider Confirmation (the
Confirmation Hearing); and the Court having considered the Debtors Memorandum of Law (i)
in Support of Confirmation of the First Amended Plan of Reorganization of SUNE and its Debtor
Affiliates and (ii) in Response to Objections Thereto, filed by the Debtors on []July 18, 2017
[Docket No. []3649] (the Confirmation Brief), the Declaration of John S. Dubel, Chief
Executive Officer and Chief Restructuring Officer of the Debtors, In Support of Confirmation of
The First Amended Plan of Reorganization of SunEdison Inc. and its Debtor Affiliates [Docket
No. 3531] (the Dubel Declaration), the Supplemental Declaration of John S. Dubel In Support
of Confirmation of The First Amended Plan of Reorganization of SunEdison Inc. and its Debtor
Affiliates [Docket No. 3646] (the Supplemental Dubel Declaration), the Declaration of Philip
J. Gund, Chief Financial Officer of the Debtors, In Support of First Amended Plan of
Reorganization of SunEdison Inc. and its Debtor Affiliates [Docket No. 3621] (the Gund
Declaration), the Declaration of Steven Fleming, a Principal at PricewaterhouseCoopers LLP, In
Support of First Amended Plan of Reorganization of SunEdison Inc. and its Debtor Affiliates
[Docket No. 3532] (the Fleming Declaration), the Supplemental Declaration of Steven Fleming
In Support of Confirmation of The First Amended Plan of Reorganization of SunEdison Inc. and
its Debtor Affiliates [Docket No. 3647] (the Supplemental Fleming Declaration), the
Declaration of Homer Parkhill, Managing Director at Rothschild, Inc., In Support of First

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Amended Plan of Reorganization of SunEdison Inc. and its Debtor Affiliates [Docket No. 3533]
(the Parkhill Declaration), the Declaration of Homer Parkhill In Support of Debtors Motion
for Entry of an Order Authorizing and Approving Certain Amendments to The Rights Offering
Procedures [Exhibit B to Docket No. 3622] (the Parkhill Rights Offering Declaration), and the
Declaration of [], [] atChristina Pullo of Prime Clerk, LLC (Prime Clerk), Certifying the
Methodology for the Regarding Solicitation of Votes and Tabulation of Votes On and Results of
Voting With Respect toBallots Cast on the First Amended Joint Plan of Reorganization of
SUNESunEdison, Inc. and its Debtor Affiliates Pursuant to Chapter 11 of the Bankruptcy Code
[Docket No. []3651] (the Voting Certification), each filed by the Debtors (and in the case of
the Voting Certification, Prime Clerk) in advance of the Confirmation Hearing; the Court having
admitted into the record and considered evidence at the Confirmation Hearing; the Court having
overruled any and all unresolved objections to confirmation (Confirmation) of the Plan and all
reservations of rights not consensually resolved or withdrawn unless otherwise indicated herein;
the Court having taken judicial notice of the contents of the docket of the Chapter 11 Cases
(defined below) maintained by the clerk of the Bankruptcy Court of the Southern District of New
York (the Clerk of the Court) and/or its duly-appointed agent, including all pleadings and other
documents filed, all orders entered thereon, all hearing transcripts, and all evidence and
arguments made, proffered, or adduced at the hearings held before the applicable court during the
pendency of the Chapter 11 Cases; and after due deliberation thereon and good and sufficient
cause appearing therefor,
It hereby is DETERMINED, FOUND, ADJUDGED, DECREED AND
ORDERED THAT:

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FINDINGS OF FACT AND CONCLUSIONS OF LAW4
A. Jurisdiction; Venue; Core Proceeding (28 U.S.C. 157(b)(2) and
1334(a)). This Court has jurisdiction over the above-captioned chapter 11 cases (the Chapter 11
Cases) pursuant to 28 U.S.C. 157 and 1334. Venue is proper before this Court pursuant to
28 U.S.C. 1408 and 1409. Confirmation of the Plan is a core proceeding pursuant to 28
U.S.C. 157(b)(2)(L), and this Court has jurisdiction to determine whether the Plan complies
with the applicable provisions of title 11 of the United States Code (the Bankruptcy Code) and
should be confirmed.
B. Eligibility for Relief. The Debtors were and are Entities eligible for relief
under section 109 of the Bankruptcy Code.
C. Commencement and Administration of the Chapter 11 Cases. On April
21, 2016, twenty-six of the Debtors filed petitions for relief under chapter 11 of the Bankruptcy
Code in this Court, with additional Debtors filing voluntary petitions on June 1, July 20, August
9, August 10, December 16, 2016 and April 7, 2017 (as applicable, the Petition Date). The
Debtors have operated their businesses and managed their properties as debtors in possession
pursuant to section 1107(a) and 1108 of the Bankruptcy Code. No trustee has been appointed in
the Chapter 11 Cases.
D. Filing of Plan and Plan Exhibits. On March 28, 2017, the Debtors filed
the Joint Plan of Reorganization of SUNE and its Debtor Affiliates [Docket No. 2671] and the
4
All findings of fact and conclusions of law announced by the Court at the Confirmation Hearing in relation to
Confirmation are hereby incorporated into this Confirmation Order to the extent not inconsistent herewith. Each
finding of fact set forth or incorporated herein, to the extent it is or may be deemed a conclusion of law, shall
also constitute a conclusion of law. Each conclusion of law set forth or incorporated herein, to the extent it is or
may be deemed a finding of fact, shall also constitute a finding of fact.
5

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Disclosure Statement with Respect to the Plan of Reorganization of SUNE and its Debtor
Affiliates [Docket No. 2672]. On June 12, 2017, the Debtors filed the First Amended Plan of
Reorganization of SUNE and its Debtor Affiliates [Docket No. 3314 Exhibit A to Disclosure
Statement] and the First Amended Disclosure Statement with Respect to the First Amended Plan
of Reorganization of SUNE and its Debtor Affiliates [Docket No. 3314]. On July 6, 2017, the
Debtors filed certain components of the Plan Supplement [Docket No. 3522], which collectively
contained Exhibits 2.1, 6.5, 6.15, 6.20, 7.1, 7.6, and 8.1 to the Plan. The Plan Supplement was
served in the manner set forth in the Affidavit of Service of Kadeem Champagnie filed by Prime
Clerk on July 13, 2017 [Docket No. 3588]. Certain amendments to theOn July 19, 2017, the
Debtors filed the Second Plan Supplement were filed on [], 2017 [Docket No. []]3661], which
contained a revised Exhibit 6.5 to the Plan, and the Third Plan Supplement [Docket No. 3673],
which collectively contained revised Exhibits []7.1 and 7.6 to the Plan. The Second and Third
Plan Supplement amendmentsSupplements were served in the manner set forth in the
AffidavitAffidavits of Service of []Keenan K. Baldeo filed by Prime Clerk on []July 24, 2017
[Docket NoNos. []3701 and 3702]. The Plan Supplement, as amended, complies with the terms
of the Plan, and the filing and notice of the Plan Supplement materials were good and proper, and
in accordance with the Bankruptcy Code, the Bankruptcy Rules, and the Disclosure Statement
Order, and no other or further notice is or shall be required.
E. Transmittal of Solicitation Package. On or before June 16, 2017, the
Debtors, through their solicitation agent, Prime Clerk (the Claims and Solicitation Agent),
caused the applicable forms of ballots in the forms attached to the Disclosure Statement Order
(as modified, collectively, the Ballots) and the Solicitation Packages (as set forth in the

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Disclosure Statement Order) to be served and distributed as required by the Disclosure Statement
Order, section 1125 of the Bankruptcy Code, Bankruptcy Rules 3017 and 3018, the local rules
for this Court (the Local Rules), all other applicable provisions of the Bankruptcy Code, and all
other applicable rules, laws, and regulations applicable to such solicitation, all as set forth in the
Affidavit of Service of Nickesha Scully regarding service of solicitation materials filed on June
23, 2017 [Docket No. 3417] (the Solicitation Affidavit). The Solicitation Packages were
transmitted to all creditors entitled to vote on the Plan and sufficient time was prescribed for
creditors to accept or reject the Plan. The transmittal and service of the Solicitation Packages and
Ballots was adequate and sufficient under the circumstances and no other or further notice is or
shall be required.
F. Mailing and Publication of Notice. As described herein and as evidenced
by the Solicitation Affidavit, due, adequate and sufficient notice of the Plan and the Confirmation
Hearing, together with all deadlines for voting on or objecting to the Plan was given in
compliance with the Bankruptcy Code and the Bankruptcy Rules. The Debtors, through the
Claims and Solicitation Agent, caused the Confirmation Hearing Notice to be mailed to all (a)
known Holders of Claims and Interests, (b) parties that requested notice in accordance with
Bankruptcy Rule 2002, and (c) all other parties included in the Debtors creditor and notice party
matrix. The Debtors also published the Confirmation Hearing Notice in the national edition of
The New York Times, San Francisco Chronicle, Houston Chronicle, and the Oregonian on June
16, 2017, and the global edition of The Wall Street Journal, San Mateo Daily Journal, and St.
Louis Post-Dispatch on June 19, 2017, as evidenced by the affidavit of publication filed by Prime
Clerk on June 22, 2017 [Docket No. 3415], in compliance with the Disclosure Statement Order

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and Bankruptcy Rule 2002(l). Thus, the Debtors have given proper, adequate and sufficient
notice of the Confirmation Hearing and no other or further notice is or shall be required.
G. Solicitation. Votes on the Plan were solicited in good faith and in
compliance with sections 1125 and 1126 of the Bankruptcy Code, Bankruptcy Rules 3017 and
3018, the Disclosure Statement, the Disclosure Statement Order, the local rules of this Court, all
other applicable provisions of the Bankruptcy Code, and all other applicable rules, laws, and
regulations applicable to such solicitation. Pursuant to the Solicitation Procedures (as defined in
the Disclosure Statement Order), the Debtors transmitted Solicitation Packages (as defined in the
Disclosure Statement Order) to those Holders of Claims entitled to vote on the Plan as of the
June 5, 2017 record date, including to the Nominees (the Holders of Record) (or their mailing
agents) of the Holders of Second Lien Senior Notes and Convertible Senior Notes.
H. Voting Certification. On []July 18, 2017, the Claims and Solicitation
Agent filed the Voting Certification, certifying the method and results of the ballot tabulation for
each of the Classes entitled to vote under the Plan, Classes 1A-1B, 4A-4E, and 9E (collectively
and together with Class 10E, the Voting Classes). As evidenced by the Voting Certification, as
supplemented on the record at the Confirmation Hearing, all Voting Classes voted to accept the
Plan in accordance with section 1126 of the Bankruptcy Code except for Classes 4B-15, 4B-30,
4B-34, and 4E-110E.
I. Plan Modifications. Subsequent to solicitation, the Debtors made certain
modifications to the Plan. All such modifications since the entry of the Disclosure Statement
Order are consistent with all of the provisions of the Bankruptcy Code, including sections 1122,
1123, 1125, and 1127 of the Bankruptcy Code. None of the aforementioned modifications

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materially adversely affects the treatment of any Holder of a Claim or Interest under the Plan.
Accordingly, pursuant to section 1127(a) of the Bankruptcy Code, none of the modifications
require additional disclosure under section 1125 of the Bankruptcy Code or re-solicitation of
votes under section 1126 of the Bankruptcy Code. Prior notice regarding the substance of any
modifications to the Plan, together with the filing with the Bankruptcy Court of the Plan as
modified, and the disclosure of the Plan modifications on the record at or prior to the
Confirmation Hearing constitute due and sufficient notice of any and all such modifications.
Further, in accordance with section 1127 of the Bankruptcy Code and Bankruptcy Rule 3019, all
Holders of Claims or Interests who voted to accept the Plan or who are conclusively presumed to
have accepted the Plan are deemed to have accepted the Plan as modified by the Plan
modifications. No Holder of a Claim or Interest shall be permitted to change its vote as a
consequence of the Plan modifications unless otherwise agreed to by the Holder of the Claim or
Interest and the Debtors. The modifications to the Plan are hereby approved, pursuant to section
1127 of the Bankruptcy Code and Bankruptcy Rule 3019. The Plan as modified shall constitute
the Plan submitted for Confirmation.
J. Bankruptcy Rule 3016. The Plan is dated and identifies the Entities
submitting it, thereby satisfying Bankruptcy Rule 3016(a). The filing of the Disclosure
Statement with the Clerk of the Court satisfied Bankruptcy Rule 3016(b).
K. Plan Compliance with Bankruptcy Code (11 U.S.C. 1129(a)(1)). The
Plan satisfies section 1129(a)(1) of the Bankruptcy Code because it complies with the applicable
provisions of the Bankruptcy Code, including, but not limited to: (a) the proper classification of
Claims and Interests (11 U.S.C. 1122, 1123(a)(1)); (b) the specification of Unimpaired

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Classes of Claims and Interests (11 U.S.C. 1123(a)(2)); (c) the specification of treatment of
Impaired Classes of Claims and Interests (11 U.S.C. 1123(a)(3)); (d) provision for the same
treatment of each Claim or Interest within a Class (11 U.S.C. 1123(a)(4)); (e) provision for
adequate and proper means for implementation of the Plan (11 U.S.C. 1123(a)(5)); (f) the
prohibition against the issuance of non-voting equity securities (11 U.S.C. 1123(a)(6)); (g)
adequate disclosure of the identities and affiliations of the directors and officers with respect to
the Reorganized Debtors, as set forth in the Notice of Filing of Second Plan Supplement
Documents and Disclosures Pursuant to Section 1129(a)(5) of the Bankruptcy Code [Docket No.
3661] (the Second Plan Supplement Notice), and the GUC/Litigation Trust Trustee and
GUC/Litigation Trust Oversight Board with respect to the GUC/Litigation Trust, as set forth in
the notice of [] filed on July [], 2017Exhibit 7.1 of the Third Plan Supplement [Docket No.
[]3673] (11 U.S.C. 1123(a)(7)); and (h) additional plan provisions permitted to effectuate the
restructuring of the Chapter 11 Cases (11 U.S.C. 1123(b)).
(a) Proper Classification (11 U.S.C. 1122 and 1123(a)(1)). The
classification of Claims and Interests under the Plan is proper under the Bankruptcy Code. In
accordance with sections 1122(a) and 1123(a)(1) of the Bankruptcy Code, Article III of the Plan
adequately and properly identifies and classifies all Claims and Interests (other than
Administrative Claims, Original DIP Facility Claims, Replacement DIP Facility Claims,
Professional Claims, and Priority Tax Claims, which are addressed in Article II of the Plan, and
which are not required to be designated as separate Classes pursuant to section 1123(a)(1) of the
Bankruptcy Code). The Plan provides for the separate classification on a debtor-by-debtor basis
of Claims and Interests into eight (8) Classes based on differences in the legal nature or priority
10

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of such Claims and Interests. Each Class of Claims and Interests contains only Claims or
Interests that are substantially similar to the other Claims and Interests within that Class, and
such classification therefore satisfies section 1122 of the Bankruptcy Code. Valid business,
factual, and legal reasons exist for the separate classification of the various Classes of Claims and
Interests under the Plan, the classifications were not made for any improper purpose, and the
creation of such Classes does not unfairly discriminate between or among Holders of Claims or
Interests. Accordingly, the requirements of section 1123(a)(1) of the Bankruptcy Code are
satisfied.
(b) Specified Treatment of Unimpaired Classes (11 U.S.C.
1123(a)(2)). The Plan specifies in Article III that Classes 2A 2E and 3A 3E are Unimpaired
and certain Claims within Classes 5A 5E and 7B 7E could be Unimpaired under the Plan,
except to the extent Holders thereof agree to have their Claims or Interests Impaired, thereby
satisfying section 1123(a)(2) of the Bankruptcy Code.
(c) Specified Treatment of Impaired Classes (11 U.S.C. 1123(a)(3)).
The Plan specifies in Article III that Classes 1A 1B, 4A 4E, 6A 6E, and 9E, and 10E are
Impaired and certain Claims within Classes 5A 5E and 7B 7E could be Impaired under the
Plan, thereby satisfying section 1123(a)(3) of the Bankruptcy Code.
(d) No Discrimination (11 U.S.C. 1123(a)(4)). Article III of the Plan
provides for the same treatment for each Claim or Interest in each respective Class unless the
Holder of a particular Claim or Interest has agreed to a less favorable treatment of such Claim or
Interest. Accordingly the Plan satisfies section 1123(a)(4) of the Bankruptcy Code.
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(e) Implementation of the Plan (11 U.S.C. 1123(a)(5)). Article VI of
the Plan provides for adequate and proper means for implementation of the Plan, thereby
(f) Nonvoting Equity Securities (11 U.S.C. 1123(a)(6)). Article 6.15
of the Plan provides that the organizational documents of the Reorganized Debtors shall be
amended as may be required so that they are consistent with the provisions of the Plan and
otherwise comply with the Bankruptcy Code. The Amended and Restated Certificate of
Incorporation of SUNE provides for the prohibition of the issuance of non-voting equity
securities pursuant to and to the extent required by section 1123(a)(6) of the Bankruptcy Code, as
set forth in Exhibit 6.15 of the Plan. Accordingly, the Plan satisfies section 1123(a)(6) of the
Bankruptcy Code.
(g) Selection of Officers and Directors (11 U.S.C. 1123(a)(7)).
Article 6.16 of the Plan sets forth the manner of selection of the directors and officers of the
Reorganized Debtors. The Debtors have properly and adequately disclosed the identity and
affiliations of all individuals proposed to serve on or after the Effective Date as officers or
directors of the Reorganized Debtors, as set forth in the notice of [____] filed on July [], 2017
[Docket No. []]Second Plan Supplement Notice, as well as the GUC/Litigation Trust Trustee
and GUC/Litigation Trust Oversight Board, as set forth in Exhibit 7.1 of the Third Plan
Supplement [Docket No. []3673]. The appointment, employment, or manner of selection of
such individuals or entities and the proposed compensation and indemnification arrangements for
officers and directors are consistent with the interests of Holders of Claims and Interests and with
public policy. Thus, section 1123(a)(7) of the Bankruptcy Code is satisfied.
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(h) Additional Plan Provisions (11 U.S.C. 1123(b)). The Plans
additional provisions are appropriate and consistent with the applicable provisions of the
Bankruptcy Code, including, without limitation, provisions for: (i) the general settlement of
Claims and Interests (including the Committee/BOKF Plan Settlement); (ii) distributions to
Holders of Claims; (iii) the disposition of Executory Contracts and Unexpired Leases; (iv) the
retention of, and the right to enforce, sue on, settle, or compromise (or refuse to do any of the
foregoing with respect to) certain claims or causes of action against third parties, if any, to the
extent not waived and released under the Plan or this Confirmation Order or transferred to
GUC/Litigation Trust; (v) the issuance of New SUNE Common Stock and the Reinstated Second
Lien Claims or, if applicable, the Reinstated Tranche B Roll-Up Loans, in accordance with the
Plan); (vi) the conversion and distribution of Continuing TERP Class A Shares; (vii) vesting of
assets in the Reorganized Debtors; (viii) authorization for entering into the Committee/BOKF
Plan Settlement; (ix) transferring and vesting GUC/Litigation Trust Assets to the GUC/Litigation
Trust; (x) authorization for entering into the restructuring transactions; (xi) indemnification
obligations; (xii) releases by the Debtors of the Released Parties; (xiii) releases by the Holders of
Claims of the Released Parties; and (xiv) the exculpation of the Exculpated Parties.
L. Debtors Compliance with Bankruptcy Code (11 U.S.C. 1129(a)(2)).
The Debtors have complied with the applicable provisions of the Bankruptcy Code, the
Bankruptcy Rules, the Disclosure Statement Order, and other orders of this Court, thereby
M. Plan Proposed in Good Faith (11 U.S.C. 1129(a)(3)). The Debtors have
proposed the Plan in good faith and not by any means forbidden by law. In determining that the
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Plan has been proposed in good faith, the Court has examined the totality of the circumstances
surrounding the filing of the Chapter 11 Cases, the formulation and negotiation of the Plan and
all modifications thereto and the Committee/BOKF Plan Settlement. The Chapter 11 Cases were
filed, and the Plan and all modifications thereto and the Committee/BOKF Plan Settlement were
proposed, with the legitimate and honest purpose of reorganizing and maximizing the value of
the Debtors and the recovery to Claim Holders. Therefore, the Debtors have proposed the Plan in
good faith and not by any means forbidden by law, and section 1129(a)(3) of the Bankruptcy
Code is satisfied with respect to the Plan.
N. Payments for Services or Costs and Expenses (11 U.S.C. 1129(a)(4)).
Any payment made or to be made by the Debtors for services or for costs and expenses in
connection with the Chapter 11 Cases, including administrative expense and substantial
contribution claims under sections 503 and 507 of the Bankruptcy Code, or in connection with
the Plan and incident to the Chapter 11 Cases, either has been approved by or is subject to the
approval of the Court as reasonable, thereby satisfying section 1129(a)(4) of the Bankruptcy
Code.
O. Board of Directors, Officers, and Insiders (11 U.S.C. 1129(a)(5)). The
Debtors have complied with section 1129(a)(5) of the Bankruptcy Code. Specifically, the
Debtors have disclosed the identity and the affiliation of certain individuals proposed to serve on
or after the Effective Date as officers or directors of the Reorganized Debtors. Accordingly,
section 1129(a)(5) of the Bankruptcy Code is satisfied with respect to the Plan.
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P. No Rate Changes (11 U.S.C. 1129(a)(6)). Section 1129(a)(6) of the
Bankruptcy Code is satisfied because the Plan does not provide for any change in rates over
which a governmental regulatory commission has jurisdiction.
Q. Best Interests Test (11 U.S.C. 1129(a)(7)). The liquidation analysis
attached as Exhibit C to the Disclosure Statement, the Fleming Declaration, and other evidence
proffered or adduced at the Confirmation Hearing (1) are persuasive and credible, (2) are based
upon reasonable and sound assumptions, (3) provide a reasonable estimate of the liquidation
values of the Debtors upon hypothetical conversion to a case under chapter 7 of the Bankruptcy
Code, and (4) establish that each Holder of a Claim or Interest in an Impaired Class that has not
accepted the Plan will receive or retain under the Plan, on account of such Claim or Interest,
property of a value, as of the Effective Date, that is not less than the amount that such Holder
would receive if the Debtors were liquidated under Chapter 7 of the Bankruptcy Code on such
date. Therefore, the Plan satisfies section 1129(a)(7) of the Bankruptcy Code.
R. Acceptance By Certain Classes (11 U.S.C. 1129(a)(8)). Classes 2A
2E, 3A 3E, 5A-5E, and 7B-7E5 are Unimpaired by the Plan and therefore, under section
1126(f) of the Bankruptcy Code, such Classes are conclusively presumed to have accepted the
Plan. All Voting Classes voted to accept the Plan except for Classes 4B-15, 4B-30, 4B-34, and
4E-110E, which voted to reject the Plan, and those Classes deemed to reject the Plan; therefore,
section 1129(a)(8) of the Bankruptcy Code has not been satisfied with respect to these Classes
5
The Plan provides that certain Claims within Classes 5A-5E and 7B-7E shall be either Impaired or Unimpaired,
thus may be presumed to accept or deemed to reject the Plan.
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that voted to reject or are deemed to reject the Plan. Accordingly, Confirmation is sought
pursuant to section 1129(b) of the Bankruptcy Code with respect to such Classes.6
S. Treatment of Administrative Claims, Original DIP Facility Claims,
Replacement DIP Facility Claims, Priority Tax Claims, and Other Priority Claims (11 U.S.C.
1129(a)(9)). The treatment of Administrative Claims, Original DIP Facility Claims,
Replacement DIP Facility Claims, and Other Priority Claims under the Plan satisfies the
requirements of section 1129(a)(9)(A) and (B) of the Bankruptcy Code, and the treatment of
Priority Tax Claims under the Plan satisfies the requirements of section 1129(a)(9)(C) of the
Bankruptcy Code.
T. Acceptance By Impaired Class (11 U.S.C. 1129(a)(10)). At least one
Impaired Class of Claims in the Chapter 11 Cases voted to accept the Plan determined without
including any acceptance of the Plan by any insiders. Therefore, section 1129(a)(10) of the
Bankruptcy Code is satisfied with respect to the Plan.
U. Feasibility (11 U.S.C. 1129(a)(11)). The Debtors financial projections
(as revised) as of the Effective Date are reasonable, credible, and made in good faith and, along
with the capital structure of the Reorganized Debtors, and the terms of the Reinstated Second
Lien Debt, establish that the Plan is feasible and that Confirmation is not likely to be followed by
the liquidation of the Reorganized Debtors or the need for further financial reorganization of the
Reorganized Debtors except as otherwise provided for in the Plan. Therefore, the Plan satisfies
section 1129(a)(11) of the Bankruptcy Code.
V. Payment of Fees (11 U.S.C. 1129(a)(12)). The Debtors have paid or,
pursuant to the Plan, will pay by the Effective Date, fees payable under 28 U.S.C. 1930,
thereby satisfying section 1129(a)(12) of the Bankruptcy Code.

6
See Voting Certification [Docket No. []]3651].
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W. Continuation of Retiree Benefits (11 U.S.C. 1129(a)(13)). After the
Effective Date, subject to the Reorganized Debtors rights, if any, under applicable non-
bankruptcy law, the Reorganized Debtors shall continue to pay all retiree benefits, if any, as that
term is defined in section 1114 of the Bankruptcy Code, at the level established pursuant to
subsection (e)(1)(B) or (g) of section 1114 of the Bankruptcy Code, thereby satisfying section
1129(a)(13) of the Bankruptcy Code.
X. Section 1129(b); Confirmation of The Plan Over Nonacceptance of
Impaired Classes. Classes 6A 6E and 8A are deemed to reject the Plan, and Classes 4B-15,
4B-30, 4B-34, and 4E-110E voted to reject the Plan (the Rejecting Voting Classes). Pursuant
to section 1129(b) of the Bankruptcy Code, the Plan may be confirmed notwithstanding that not
all Impaired Classes have voted to accept the Plan. All of the requirements of section 1129(a) of
the Bankruptcy Code with respect to such Classes, other than section 1129(a)(8), have been met.
With respect to Classes 6A 6E and 8A and the Rejecting Voting Classes, no Holders of Claims
or Interests junior to the Holders of such Classes will receive or retain any property under the
Plan on account of such Claims or Interests. Additionally, no Class of Claims or Interests is
receiving property under the Plan having a value more than the Allowed amount of such Claim or
Interest. Further, the Plan does not unfairly discriminate among Classes of Claims and Interests
because holders of Claims with similar legal rights will not be receiving materially different
treatment under the Plan. Specifically, classifications and recoveries under the Plan are based on
the following factors: (a) Debtor entities and claims against such entity and assets at each entity,
and (b) legal rights of holders of Claims, including rights under applicable credit and debt
agreements, security interests against the applicable Debtor, and subordination agreements.
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Accordingly, the Plan is fair and equitable and does not discriminate unfairly, as required by
section 1129(b) of the Bankruptcy Code, and may be confirmed under Bankruptcy Code section
1129(b) notwithstanding such Classes rejection or deemed rejection of the Plan.
Y. Principal Purpose of Plan (11 U.S.C. 1129(d)). The principal purpose of
the Plan is not the avoidance of taxes or the avoidance of the application of section 5 of the
Securities Act of 1933 (15 U.S.C. 77e). Accordingly, the Plan satisfies the requirements of
section 1129(d) of the Bankruptcy Code.
Z. Plan Settlements. In accordance with Bankruptcy Rule 9019, the Plan is
dependent upon and incorporates the terms of compromises and settlements (the Plan
Settlements), which include, among others, the Committee/BOKF Plan Settlement. With
respect to the Committee/BOKF Plan Settlement, which is an essential element of the Plan:
(a) A fair and reasonable opportunity to object or be heard with respect to the
Committee/BOKF Plan Settlement has been afforded to all interested persons
and entities. An objection to the Plan was filed by CNH Capital Partners,
LLC and AQR Capital Management LLC (the AQR Objection) [Docket No.
3592], which included an objection to, inter alia, the Committee/BOKF Plan
Settlement. The AQR Objection, to the extent not withdrawn, waived, or
settled, is hereby overruled on the merits.
(b) The Committee/BOKF Plan Settlement (i) is fair and equitable, (ii) is in the
best interests of the estates, and (iii) falls well above the lowest rung in the
range of reasonableness the relevant inquiry with respect to Bankruptcy Rule
9019 settlements with respect to all pending litigation commenced and
objections filed (or otherwise alleged or threatened) by the Creditors
Committee and BOKF, N.A. (BOKF) and resolved pursuant to the
Committee/BOKF Plan Settlement, including, without limitation, the UCC
Challenge Litigation, the BOKF Objection, and disputes related to the
YieldCo Settlement Motion and the Plan. The balance between the likelihood
of the Debtors (or the Second Lien Defendants, as applicable) success on the
merits with respect to such litigation, objections, and disputes after lengthy
and costly litigation (and the implications for the Debtors Plan process), when
compared to the concrete and tangible benefit of the Committee/BOKF Plan
Settlement weighs in favor of approval of the Committee/BOKF Plan
Settlement. Moreover, as set forth in the Disclosure Statement, litigation of
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the underlying claims and disputes that have been threatened or commenced
by all of the various parties would be complex based on the highly fact-
sensitive nature of the issues involved. Such litigation would be protracted,
costly, and dilutive to creditor recoveries, and counter to the desire of creditors
for speedy distributions. Lastly, the collectability by any party of any
judgment that might be ordered in the Debtors favor is far from certain.
(c) The Creditors Committee supports the Committee/BOKF Plan Settlement,

and upon the entry of this Confirmation Order, the approval of the
Committee/BOKF Plan Settlement, and the Effective Date of the Plan, all
pending litigation that has been commenced by the Creditors Committee or
BOKF shall be deemed withdrawn with prejudice in accordance with the
Committee/BOKF Plan Settlement Term Sheet. As set forth in the Voting
Certification, unsecured creditors have overwhelmingly supported the Plan,
and therefore, the Committee/BOKF Plan Settlement.
(d) The negotiation and execution of the Committee/BOKF Plan Settlement by

the Debtors, the Tranche B Lenders/Steering Committee of Prepetition Second
Lien Lenders and Noteholders, the Creditors Committee, and BOKF was at
arms-length and in good faith, and at all times each of the parties was
represented by competent, independent counsel of their choosing. The
Committee/BOKF Plan Settlement was the product of a multi-day mediation
process before Chief Judge Cecelia Morris of the Bankruptcy Court for the
Southern District of New York. The Debtors relied on independent,
experienced advisors from Skadden, Arps, Slate, Meagher & Flom LLP,
Rothschild Inc., Brown Rudnick LLP, and PricewaterhouseCoopers LLP when
exercising their business judgment to enter into the Committee/BOKF Plan
Settlement.
Accordingly, the Plan Settlements are fair, equitable, reasonable, and appropriate in light of the
facts and circumstances, and are in the best interests of the Debtors, the Estates, and the Holders
of Claims and Interests. The terms of the Committee/BOKF Plan Settlement are approved and
the Debtors or the Reorganized Debtors, as applicable, are directed to implement, effectuate and
consummate any and all documents or transactions contemplated by the Committee/BOKF Plan
Settlement.
AA. Reinstated Second Lien Claims. The reinstatement of the Reinstated
Second Lien Claims pursuant to the Reinstated Second Lien Modification Terms, as set forth at
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Exhibit 6.5 of the Plan Supplement (as amended), and the reinstatement of the Reinstated
Tranche B Roll-Up Loans, if applicable, is an essential element of the Plan and is in the best
interests of the Debtors, their Estates, and Holders of Claims and Interests. The Debtors are
authorized, without further approval of this Court or any other party, to issue or incur the
Reinstated Second Lien Claims (and the Reinstated Tranche B Roll-Up Loans, if applicable) in
accordance with the Plan and to execute and deliver all agreements, documents, instruments and
certificates relating thereto, including, without limitation, any and all security agreements and
other agreements and filings necessary to reflect the seniority of the Liens securing the Reinstated
Second Lien Claims (and, if applicable, the Reinstated Tranche B Roll-Up Loans).
BB. Issuance of New SUNE Common Stock. The issuance of the New SUNE
Common Stock is an essential element of the Plan and is in the best interests of the Debtors, their
Estates, and Holders of Claims and Interests. SUNE is authorized, without further approval of
this Court or any other party, to issue the New SUNE Common Stock in accordance with the
Plan and Plan Supplement and to execute and deliver all agreements, documents, instruments and
certificates relating thereto.
CC. Conversion and Distribution of Continuing TERP Class A Shares.
Without limiting, impairing, or modifying any previous order of this Court approving or
governing the Jointly Supported Transactions, the proposed terms and conditions of the Debtors
retention and distribution of the Continuing TERP Class A Shares are fair and reasonable and are
in the best interests of the Debtors, their Estates, and the Holders of Claims and Interests, and do
not conflict with applicable law. The retention and subsequent distribution by the Debtors of the
Continuing TERP Class A Shares pursuant to the Plan and the Rights Offering, is an essential
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element of the Plan and is in the best interests of the Debtors, their Estates, and Holders of
Claims and Interests. The Debtors are authorized, without further approval of this Court or any
other party, to retain the Continuing TERP Class A Shares pursuant to the Jointly Supported
Transactions and to distribute the Continuing TERP Class A Shares in accordance with the Plan
and to execute and deliver all agreements, documents, instruments and certificates relating
thereto.
DD. Distributions of Securities Are Subject to Exemptions. Section 6(e) of the
Equity Commitment Agreement contains a representation and warranty from the Backstop
Purchasers that each Backstop Purchaser is an accredited investor as defined in Section 501(a)
of the Securities Act. Valid Rights Exercise Forms (as defined in the Rights Offering
Procedures) will require Eligible Holders (as defined in the Rights Offering Procedures) to certify
that such Eligible Holder is (i) either (A) a qualified institutional buyer, as such term is defined
in Rule 144A under the Securities Act, or (B) an institutional accredited investor (an IAI)
within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act, or (ii) an entity in
which all of the equity investors are IAIs. The offering, issuance, and distribution of any
Securities pursuant to the Plan, including offering, issuing, and/or distributing the Continuing
TERP Class A Shares, the New SUNE Common Stock, and the GUC/Litigation Trust Interests to
the extent any of them constitute Securities, are subject to or made in good faith and in reliance
upon exemptions from the registration requirements of the Securities Act and any state or local
laws requiring registration for offer or sale of a security or registration or licensing of an issuer
of, underwriter of, or broker dealing in, a security pursuant to and subject to section 1145(a) of
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the Bankruptcy Code (Section 1145), section 4(a)(1) of the Securities Act (Section 4(a)(1)),
and section 4(a)(2) of the Securities Act (Section 4(a)(2)), as follows:
(a) The Debtors are issuing 10% of New SUNE Common Stock (subject to
dilution by the Put Premium) and distributing 10% of Continuing TERP Class
A Shares (subject to dilution by the Put Premium) on account of and in
exchange for Second Lien Claims as contemplated by the Plan, in good faith
reliance upon exemption registration under the Securities Act under Section
1145.
(b) The Debtors are issuing the rights to participate in the Rights Offering
contemplated by the Plan in good faith reliance upon exemption from
registration under the Securities Act under Sections 4(a)(1) or 4(a)(2), as
applicable.
(c) The Debtors are issuing 90% of New SUNE Common Stock in exchange for
exercising rights in the Rights Offering and pursuant to the direct purchase by
the Rights Offering Backstop Purchasers (as set forth in the Equity
Commitment Agreement), each as contemplated by the Plan, in good faith
reliance upon exemption from registration under the Securities Act under
Section 4(a)(2).
(d) The Debtors are distributing 90% of Continuing TERP Class A Shares in
exchange for exercising rights in the Rights Offering and pursuant to the direct
purchase by the Rights Offering Backstop Purchasers (as set forth in the
Equity Commitment Agreement), each as contemplated by the Plan, in good
faith reliance upon exemption from registration under the Securities Act under
Section 4(a)(1).
(e) The Debtors are issuing New SUNE Common Stock and distributing
Continuing TERP Class A Shares for the Rights Offering Backstop Standby
Fee, as contemplated by the Plan, in good faith reliance upon exemption from
registration under the Securities Act under Section 4(a)(1) and Section 4(a)(2),
as applicable.
(f) The GUC/Litigation Trust Beneficiaries will receive the GUC/Litigation Trust
Interests, as contemplated by the Plan, in good faith reliance upon exemption
from registration under the Securities Act under Section 1145 to the extent any
GUC/Litigation Trust Interest is deemed a security.
EE. GUC/Litigation Trust. Entry into the GUC/Litigation Trust Agreement is
in the best interests of the Debtors and the Debtors Estates and creditors. Each of the
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establishment of the GUC/Litigation Trust, the selection of Drivetrain, LLC to serve as the
GUC/Litigation Trust Trustee, the form of the proposed GUC/Litigation Trust Agreement (as it
may be modified or amended), is appropriate and in the best interests of the Debtors creditors.
The GUC/Litigation Trust Agreement, including Exhibits A, B and C thereto, shall, upon
execution, be valid, binding and enforceable in accordance with its terms. The Holders of
Claims in Classes 1A and 1B (Second Lien Claims) and the Holders of Claims in Classes 4A-4E
(General Unsecured Claims) shall be GUC/Litigation Trust Beneficiaries, in accordance with the
terms set forth in the Plan, the Committee/BOKF Plan Settlement Term Sheet, and the
GUC/Litigation Trust Agreement.
FF. Executory Contracts. The Debtors have exercised reasonable business
judgment in determining whether to assume or reject their executory contracts and unexpired
leases pursuant to Article VIII of the Plan, which provides that except as otherwise provided
under the Plan, each Executory Contract and Unexpired Lease of the Debtors shall be deemed
automatically rejected (subject to certain exceptions, including, without limitation, those
contracts that are expressly assumed pursuant to Article 8.2 of the Plan) pursuant to sections 365
and 1123 of the Bankruptcy Code subject to the occurrence of the Effective Date with such
rejection to be effective as of such date. Each assumption (pursuant to Exhibit 8.1 (the Schedule
of Assumed Contracts and Unexpired Leases) or rejection of an Executory Contract or Unexpired
Lease pursuant to Article VIII of the Plan shall be legal, valid and binding upon the Debtors or
Reorganized Debtors and their successors or assignees (if any) and all non-debtor parties (and
their assignees or successors) to such Executory Contract or Unexpired Lease, all to the same
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extent as if such assumption or rejection had been effectuated pursuant to an order of the Court
entered before the Confirmation Date under section 365 of the Bankruptcy Code.
GG. Adequate Assurance. The Debtors have cured, or provided adequate
assurance that the Reorganized Debtors or their successors or assignees (if any) will cure,
defaults (if any) under or relating to each of the executory contracts and unexpired leases that are
being assumed by the Debtors pursuant to the Plan. In addition, the Debtors have provided
adequate assurance of future performance regarding the executory contracts and unexpired leases
that are being assumed by the Debtors as contemplated pursuant to section 365(b)(1)(C) of the
Bankruptcy Code.
HH. Releases and Discharges. The discharge, release, injunction,
indemnification and exculpation provisions described in Article XI of the Plan, including
Articles 11.2, 11.3, 11.5, 11.6, 11.7, and 11.8, were the product of extensive good faith, arms-
length negotiations and settlements of the matters covered thereby, are otherwise approved by
this Court as appropriate pursuant to applicable law, or are consensual in the instance of the
third-party releases contemplated in Article 11.6 of the Plan in the event that a Holder of a Claim
or Interest voted to accept the Plan. Such compromises and settlements are made in exchange for
consideration and are fair, equitable, reasonable, and are integral elements of the Chapter 11
Cases in accordance with the Plan. Each of the discharge, release, injunction, indemnification
and exculpation provisions set forth in the Plan: (a) is within the jurisdiction of the Court under
28 U.S.C. 1334(a), (b), and (d); (b) is an essential means of implementing the Plan pursuant to
section 1123(a)(5) of the Bankruptcy Code; (c) is an integral and non-severable element of the
settlements and transactions incorporated into the Plan; (d) confers a material benefit on, and is
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in the best interests of, the Debtors, their Estates, and the Holders of Claims; (e) is important to
the overall objectives of the Plan to finally resolve all Claims and Interests among or against the
parties-in-interest in the Chapter 11 Cases with respect to the Debtors, their organization,
capitalization, operation, and reorganization; and (f) is consistent with sections 105, 1123, 1129,
and other applicable provisions of the Bankruptcy Code. The failure to give effect to the
discharge, release, injunction, indemnification and exculpation provisions set forth in the Plan, as
approved by this Confirmation Order, would impair the Debtors ability to confirm and
implement the Plan. The discharge provisions in Article 11.2 of the Plan shall be effective as of
the Confirmation Date of the Plan, which is not a liquidating plan and is entitled to such
discharge in accordance with section 1141(d) of the Bankruptcy Code.
II. Plan Conditions to Consummation. Each of the conditions to the Effective
Date, as set forth in Article 12.2 of the Plan, is reasonably likely to be satisfied or waived in
accordance with the terms of the Plan.
JJ. Judicial Notice. The Court takes judicial notice of the docket of the
Chapter 11 Cases maintained by the Clerk of the Court and/or its duly-appointed agent,
including, without limitation, all pleadings and other documents filed, all orders entered, and all
evidence and arguments made, proffered, or adduced at the hearings held before the Court during
the pendency of the Chapter 11 Cases.
KK. Burden of Proof. The Debtors, as proponents of the Plan, have met their
burden of proving the elements of sections 1129(a) and (b) of the Bankruptcy Code by a
preponderance of the evidence, which is the applicable evidentiary standard.
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LL. Retention of Jurisdiction. This Court properly may retain jurisdiction over
the matters set forth in Article XIII of the Plan.
DECREES
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:
Confirmation of Plan
1. Confirmation. The Plan, attached hereto as Exhibit A, including all
Exhibits attached thereto or included in the Plan Supplement, is approved and confirmed under
section 1129 of the Bankruptcy Code. The terms of the Plan are incorporated by reference into
and are an integral part of this Confirmation Order and the Debtors are authorized to implement
their provisions and consummate the Plan without any further authorization except as expressly
required by the Plan or this Confirmation Order.
2. Notice. Notice of the Plan, its exhibits, and all amendments and
modifications thereto, the Disclosure Statement and the Solicitation Packages was proper and
adequate.
3. Objections. All Objections and all reservations of rights that have not been
withdrawn, waived, or settled, pertaining to the Confirmation of the Plan are overruled on the
merits.
4. Effectiveness of All Actions. All actions contemplated by the Plan,
including in connection with the Committee/BOKF Plan Settlement, are hereby authorized and
approved in all respects (subject to the provisions of the Plan and the Committee/BOKF Plan
Settlement, as applicable). Pursuant to this Confirmation Order and applicable law and
consistent with the Plan, the Debtors and the Reorganized Debtors are authorized and
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empowered, without action of their respective stockholders or further action of the members or
boards of directors or managers, to take any and all such actions as any of their executive officers
may determine are necessary or appropriate to implement, effectuate and consummate any and all
documents or transactions contemplated by the Plan or this Confirmation Order.
5. Vesting of Assets and Operation as of the Effective Date. Except as
otherwise explicitly provided in the Plan, on the Effective Date, all property comprising the
Estates (excluding the GUC/Litigation Trust Assets) shall vest in the Reorganized Debtors
which, as Debtors, owned such property or interest in property as of the Effective Date, free and
clear of all Claims, Liens, charges, encumbrances, rights, and Interests. As of and following the
Effective Date, the Reorganized Debtors may operate their business and use, acquire, and dispose
of property and settle and compromise Claims (subject to the terms of the Committee/BOKF
Plan Settlement), Interests, or Causes of Action (excluding the GUC/Litigation Trust Assets)
without supervision of the Bankruptcy Court, free of any restrictions of the Bankruptcy Code or
Bankruptcy Rules, other than those restrictions expressly imposed by the Plan, the
Committee/BOKF Plan Settlement, or this Confirmation Order; provided, however, that if any
party applies for relief before the Bankruptcy Court, the Bankruptcy Code and Bankruptcy Rules,
and any other appropriate Local Rules and General Orders, shall apply.
6. Acceptance of the Plan. Article V of the Plan is incorporated into this
Confirmation Order as if set forth in full herein, is found to be fair and reasonable, is hereby
approved in its entirety, and shall be, and hereby is, effective and binding subject to the terms
thereof.
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7. Continuing TERP Class A Shares. Without limiting, impairing, or
modifying any previous order of this Court approving or governing the Jointly Supported
Transactions, the Debtors retention and subsequent distribution of the Continuing TERP Class A
Shares in accordance with the Plan, Jointly Supported Transactions, and Rights Offering, as
applicable, is approved. The Debtors and the Reorganized Debtors, as applicable, are authorized
and empowered, without further approval of this Court or any other party, to take such actions
and to perform such acts as may be necessary, desirable, or appropriate to retain and implement
the distribution of the Continuing TERP Class A Shares in accordance with the Plan, Jointly
Supported Transactions, and Rights Offering, as applicable, and to execute and deliver all
agreements, documents, securities, instruments, and certificates relating thereto.
8. Issuance of New SUNE Common Stock. Issuance of the New SUNE
Common Stock in accordance with the Plan is approved. The Debtors and the Reorganized
Debtors, as applicable, are authorized and empowered, without further approval of this Court or
any other party, to take such actions and to perform such acts as may be necessary, desirable, or
appropriate to implement the issuance of the New SUNE Common Stock in accordance with the
Plan and to execute and deliver all agreements, documents, securities, instruments, and
certificates relating thereto. The New SUNE Common Stock to be issued is hereby deemed
issued as of the Effective Date regardless of the date on which it is actually distributed. The New
SUNE Common Stock shall be issued to Holders of Second Lien Claims pursuant to the Plan, the
Equity Commitment Agreement, and the Rights Offering. All New SUNE Common Stock
issued by the Reorganized Debtors pursuant to the provisions of the Plan is hereby deemed to be
duly authorized, validly issued, fully paid, and non-assessable.
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9. Reinstated Second Lien Claims. Article 6.5 of the Plan is incorporated into
this Confirmation Order as if set forth in full herein, is found to be fair and reasonable, and is
hereby approved in its entirety. Without limiting the foregoing and notwithstanding anything to
the contrary in Article 6.5 of the Plan, the liens contemplated by and related to the Reinstated
Second Lien Claims (and, if applicable, the Reinstated Tranche B Roll-Up Loans) are valid,
binding and enforceable liens on the collateral specified in the relevant agreements in connection
with such Reinstatement. The guarantees, mortgages, pledges, liens, and other security interests
granted, pledged, mortgaged, assigned, conveyed, reinstated, continued or otherwise made
pursuant to or in connection with the Reinstated Second Lien Claims (and, if applicable, the
Reinstated Tranche B Roll-Up Loans) are done in good faith to the holders of such Reinstated
Second Lien Claims and, as applicable, holders of the Reinstated Tranche B Roll-Up Loans, and
shall be, and hereby are, deemed not to constitute a fraudulent conveyance or fraudulent transfer,
and shall not otherwise be subject to avoidance.
10. Exemptions from Registration. The Debtors are offering, issuing, and/or
distributing Securities pursuant to the Plan, including offering, issuing, and/or distributing New
SUNE Common Stock and Continuing TERP Class A Shares in good faith reliance upon
exemption from the registration requirements of the Securities Act and similar state statutes
pursuant to and subject to Section 1145, Section 4(a)(1), and Section 4(a)(2).
11. Restructuring Transactions. The restructuring transactions contemplated by
Article 6.3 of the Plan are approved, and the Debtors or the Reorganized Debtors, as the case
may be, are authorized to take such action (including, without limitation, and subject to the
consent requirements of Article 6.3, any tax elections) as may be necessary or appropriate to
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effect the relevant restructuring transactions as set forth in the Plan and the Committee/BOKF
Plan Settlement Term Sheet, and may take other actions on or after the Effective Date. In
accordance with the Committee/BOKF Plan Settlement, upon the entry of this Confirmation
Order, the approval of the Committee/BOKF Plan Settlement, and the Effective Date of the Plan,
all pending litigation that has been commenced by the Creditors Committee or BOKF shall be
deemed withdrawn with prejudice.
12. Exemption from Certain Transfer Taxes and Recording Fees. To the fullest
extent contemplated by section 1146(a) of the Bankruptcy Code, any transfers of property
pursuant to the Plan or any transfers of property made in connection therewith (whether such
transfers are made by the Debtors, Reorganized Debtors, or other Person) shall not be subject to
any document recording tax, stamp tax, conveyance fee, intangibles or similar tax, sales tax, use
tax, stamp act, Uniform Commercial Code filing or recording fee, regulatory filing or recording
fee, or other similar tax or governmental assessment, and upon entry of this Confirmation Order,
the appropriate state or local governmental officials or agents shall forgo the collection of any
such tax or governmental assessment and accept for filing and recordation any of the foregoing
instruments or other documents without the payment of any such tax or governmental
assessment. The Bankruptcy Court shall retain specific jurisdiction with respect to these matters.
Plan Settlements
13. Committee/BOKF Plan Settlement. The Committee/BOKF Plan
Settlement and the Committee/BOKF Plan Settlement Term Sheet and the terms contained
therein, as set forth in the Plan, are hereby approved pursuant to Bankruptcy Rule 9019 as a fair,
equitable, prudent, and reasonable compromise of the controversies and Claims resolved by the
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Committee/BOKF Plan Settlement Term Sheet, are in the best interests of the Debtors, the
Reorganized Debtors and their estates and creditors, and shall be effectuated in accordance with
the terms thereof. Notwithstanding anything contained herein, confirmation of the Plan with
respect to the Debtors does not constitute confirmation of the Plan as to the Debtor EverStream
HoldCo Fund I, LLC (EverStream), EverStream shall nonetheless be bound by the terms and
provisions of the Committee/BOKF Plan Settlement and the Committee/BOKF Plan Settlement
Term Sheet, including, without limitation, the transfer by EverStream of any GUC/Litigation
Trust Causes of Action to the GUC/Litigation Trust; provided, however, that all parties rights
are reserved with respect to the priority of distributions with respect to any assets or causes of
actions of EverStream. The Debtors and all other parties in interest are authorized to enter into,
perform their obligations under, and take all other actions to effect the Committee/BOKF Plan
Settlement pursuant to sections 105, 363(b), and 365 of the Bankruptcy Code and Bankruptcy
Rules 6004 and 9019. The Committee/BOKF Plan Settlement shall be binding on all parties in
interest in the Debtors Chapter 11 Cases and in each case, on each of their predecessors or
successors. On the Effective Date of the Plan, all pending litigation shall be deemed withdrawn
with prejudice (and, if necessary, parties will file with the Bankruptcy Court any necessary
withdrawal notices). For the avoidance of doubt, the Committee/BOKF Plan Settlement settles
any and all issues that may be in dispute (either currently or pending or that could be commenced
in the future) among the Creditors Committee, BOKF, the Debtors and the Tranche B Roll-Up
Lenders/Steering Committee of Prepetition Second Lien Lenders and Noteholders, including,
without limitation, regarding Annex II of the Replacement DIP Facility Order, other than any
disputes that may arise with respect to the interpretation or effectuation of the Committee/BOKF
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Plan Settlement, and settles any and all claims and causes of action (current or pending or that
could be commenced in the future) that the Creditors Committee has asserted or may assert
against the Prepetition First Lien Secured Parties (as defined in the Replacement DIP Order).
Unexpired Leases and Executory Contracts
14. Rejection and Assumption of Executory Contracts and Unexpired Leases.
The Executory Contract and Unexpired Lease provisions of Article VIII of the Plan are approved.
(a) Automatic Rejection. Except as otherwise provided in the Plan,
each Executory Contract and Unexpired Lease shall be deemed automatically rejected pursuant
to sections 365 and 1123 of the Bankruptcy Code as of the Effective Date, unless any such
Executory Contract or Unexpired Lease: (a) is listed on the schedule of Assumed Executory
Contracts and Unexpired Leases contained in Exhibit 8.1 of the Plan; (b) has been previously
assumed by the Debtors by Final Order of the Bankruptcy Court or has been assumed by the
Debtors by order of the Bankruptcy Court as of the Effective Date, which order becomes a Final
Order after the Effective Date; (c) is the subject of a motion to assume or reject pending as of the
Effective Date; (d) is an Executory Contract related to any Intercompany Claim; or (e) is
otherwise assumed pursuant to the terms of the Plan. This Confirmation Order constitutes an
order of the Bankruptcy Court approving such rejections pursuant to sections 365 and 1123 of the
Bankruptcy Code, with such rejections to be effective as of the Effective Date.
(b) Claims Procedures Related to Rejection of Executory Contracts or
Unexpired Leases. Unless otherwise provided by a Bankruptcy Court order, any proofs of Claim
asserting Claims arising from the rejection of the Executory Contracts and Unexpired Leases
pursuant to the Plan or otherwise must be filed with the Claims and Solicitation Agent no later
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than 30 days after the later of the Effective Date or the effective date of rejection. Any proofs of
Claim arising from the rejection of the Executory Contracts or Unexpired Leases that are not
timely filed shall be disallowed automatically and forever barred, estopped, and enjoined from
assertion and shall not be enforceable against the Debtors or the Reorganized Debtors, without
the need for any objection by the Reorganized Debtors or any further notice to or action, order, or
approval of the Bankruptcy Court, and any Claim arising out of the rejection of the Executory
Contract or Unexpired Lease shall be deemed fully satisfied, released, and discharged,
notwithstanding anything in the Schedules or a proof of Claim to the contrary. All Allowed
Claims arising from the rejection of Executory Contracts and Unexpired Leases shall be
classified as General Unsecured Claims.
(c) Assumption of Executory Contracts and Unexpired Leases. On the
Effective Date, each Executory Contract or Unexpired Lease listed on the schedule of Assumed
Executory Contracts and Unexpired Leases in Exhibit 8.1 of the Plan shall be assumed, or
assumed and assigned, as applicable, and shall vest in and be fully enforceable by the
Reorganized Debtors or their assignee (if any) in accordance with its terms, except as modified
by the provisions of the Plan or any order of the Bankruptcy Court authorizing or providing for
its assumption or applicable federal law. Assumption of any Executory Contract or Unexpired
Lease pursuant to the Plan or otherwise shall result in the full release and satisfaction of any
Cures, Claims or defaults, whether monetary or nonmonetary, including defaults of provisions
restricting the change in control or ownership interest composition or other bankruptcy-related
defaults, arising under any assumed Executory Contract or Unexpired Lease at any time prior to
the effective date of assumption.
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(d) Cure Procedures and Payments Related to Assumption of
Executory Contracts and Unexpired Leases. The Cure procedures and any payments related to
the assumption of any Executory Contract and Unexpired Lease shall be in accordance with
Article 8.5 of the Plan, as set forth in Exhibit 4-C (the Executory Contract and Unexpired Lease
Notice) of the Disclosure Statement Order.
Bar Dates and Other Deadlines
15. Administrative Claims Bar Date. Except as otherwise provided herein or in
the Plan and as set forth in Articles 2.2 or 2.3 of the Plan, all requests for payment of an
Administrative Claim must be filed, in substantially the form of the Administrative Claim
Request Form contained in Exhibit 2.1 of the Plan, with the Claims and Solicitation Agent and
served on counsel for the Debtors or the Reorganized Debtors and counsel to the Supporting
Second Lien Parties no later than the Administrative Claims Bar Date, which shall be thirty (30)
days after the Effective Date of the Plan, unless otherwise ordered by the Bankruptcy Court
(except with respect to the Original DIP Facility Claims, the Replacement DIP Facility Claims,
and Professional Claims, which shall be subject to Articles 2.2 or 2.3 of the Plan). Holders of
Administrative Claims that are required to, but do not, file and request payment of such
Administrative Claim(s) by the applicable Administrative Claims Bar Date shall be forever
barred, estopped, and enjoined from asserting such Administrative Claims against the Debtors or
their property and such Administrative Claims shall be deemed disallowed in full as of the
Effective Date.
GUC/Litigation Trust
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16. The GUC/Litigation Trust. The formation, rights, powers, duties, structure,
obligations, and other matters pertaining to the GUC/Litigation Trust shall be governed by
Article VII of the Plan and the GUC/Litigation Trust Agreement (which such agreement shall be
substantially in the form of Exhibit 7.1 to the Plan and is hereby approved). Drivetrain, LLC is
hereby appointed as the GUC/Litigation Trust Trustee.
17. Furthermore, the provisions of Article VII of the Plan are incorporated into
this Confirmation Order as if set forth in full herein, are found to be fair and reasonable, and are
hereby approved in their entirety.
18. Transfer of GUC/Litigation Trust Assets. On the Effective Date, pursuant
to section 1123(b)(3) of the Bankruptcy Code, the GUC/Litigation Trust Assets shall be
transferred by the Debtors (and deemed transferred) to the GUC/Litigation Trust free and clear of
all Claims, Liens, charges, encumbrances, rights, and interests, without the need for any Entity to
take any further action or obtain any approval. Thereupon, the Debtors, and the Reorganized
Debtors shall have no interest in the GUC/Litigation Trust Assets or the GUC/Litigation Trust.
On the Effective Date, the GUC/Litigation Trust shall be authorized as the representative of the
Estates to investigate, sue, settle, and otherwise administer the GUC/Litigation Trust in
accordance with the terms of the GUC/Litigation Trust Agreement and the Plan.
19. The Debtors or the Reorganized Debtors, as the case may be, shall
cooperate with the Creditors Committee and its Professionals in relation to the GUC/Litigation
Trusts prosecution of Avoidance Actions and Claims objections, on the terms set forth in the
Committee/BOKF Plan Settlement Term Sheet, including Annex 1 thereof.
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20. Issuance of GUC/Litigation Trust Interests. Issuance of the GUC/Litigation
Trust Interests in accordance with the Plan and the GUC/Litigation Trust Agreement is approved.
The GUC/Litigation Trust Trustee is authorized and empowered, without further approval of this
Court or any other party, to take such actions and to perform such acts as may be necessary,
desirable, or appropriate to implement the issuance of the GUC/Litigation Trust Interests in
accordance with the Plan and the GUC/Litigation Trust Agreement and to execute and deliver all
agreements, documents, securities, instruments, and certificates relating thereto. The
GUC/Litigation Trust Interests shall be issued to the GUC/Litigation Trust Beneficiaries pursuant
to the Plan and the GUC/Litigation Trust Agreement. All GUC/Litigation Trust Interests issued
by the GUC/Litigation Trust pursuant to the provisions of the Plan and the GUC/Litigation Trust
Agreement are hereby deemed to be duly authorized, validly issued, fully paid, and non-
assessable.
21. Exemption from Securities Laws. To the extent any GUC/Litigation Trust
Interest is deemed to be a security, section 1145 of the Bankruptcy Code applies to the
distribution under the Plan of the GUC/Litigation Trust Interests. In addition, to the extent
persons deemed to be underwriters receive GUC/Litigation Trust Interests pursuant to the Plan,
which interests are otherwise exempt from registration pursuant to section 1145 of the
Bankruptcy Code, resales of such GUC/Litigation Trust Interests would not be exempted by
section 1145 of the Bankruptcy Code from registration under the Securities Act or other
applicable law.
22. Fees and Expenses of Convertible Senior Notes Indenture Trustee. The
Senior Convertible Notes Indenture Trustee shall be entitled to payment of the Outstanding
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Indenture Trustee Fees and Expenses in accordance with Section 6.1(c) of the GUC/Litigation
Trust Agreement prior to the distribution of any Cash to Convertible Senior Noteholders in
respect of their Class A Litigation Trust Interests and the charging lien or priority rights of the
Convertible Senior Notes Indenture Trustee on distributions shall be deemed to attach to
distributions of Cash upon or through the Class A Litigation Trust Interests issued or distributed
in respect to the Convertible Senior Note Claims. The Litigation Trustee shall have no liability
for, and shall be held harmless from, any claims asserted by Convertible Senior Noteholder or
any other party arising from the Litigation Trustees reliance on the certification provided by the
Convertible Senior Notes Indenture Trustee pursuant to Section 6.1(c) of the GUC/Litigation
Trust Agreement.
Indemnification and Insurance
23. Indemnification. Article 8.3 of the Plan is incorporated into this
approved in its entirety, and shall be, and hereby is effective and binding subject to the terms
thereof. Notwithstanding anything to the contrary in the Plan or this Confirmation Order, the
Indemnification Amount shall be $750,000.
24. Insurance. Article 8.4 of the Plan is incorporated into this Confirmation
Order as if set forth in full herein, is found to be fair and reasonable, is hereby approved in its
entirety, and shall be, and hereby is effective and binding subject to the terms thereof.
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Discharge of the Debtors, Releases, and Injunctions
25. Discharge of Debtors. Article 11.2 of the Plan is incorporated into this
approved in its entirety, and shall be, and hereby is effective and binding subject to the terms
thereof.
26. Discharge of Liabilities Related to General Unsecured Claims and the
Convertible Senior Notes Claims. Article 11.3 of the Plan is incorporated into this Confirmation
Order as if set forth in full herein, is hereby approved in its entirety, and shall be, and hereby is
effective and binding subject to the terms thereof.
27. Release by Debtors. Article 11.5 of the Plan is incorporated into this
approved in its entirety, is so ordered, and shall be immediately effective and binding upon the
Effective Date of the Plan without further action or notice by this Court, any of the parties to
such release, or any other party.
28. Release by Holders of Claims. Article 11.6 of the Plan is incorporated into
this Confirmation Order as if set forth in full herein, is found to be fair and reasonable, is hereby
approved in its entirety, is so ordered, and shall be immediately effective and binding upon the
Effective Date of the Plan without further action or notice by this Court, any of the parties to
such release, or any other party.
29. Exculpation and Limitation of Liability. Article 11.7 of the Plan is
incorporated into this Confirmation Order as if set forth in full herein, is found to be fair and
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reasonable, is hereby approved in its entirety, and shall be, and hereby is, effective and binding
subject to the terms thereof without further action or notice by this Court or any other party.
30. Exclusions and Limitations on Exculpation, Indemnification, and Releases.
Article 11.8 of the Plan is incorporated into this Confirmation Order as if set forth in full herein,
is found to be fair and reasonable, is hereby approved in its entirety, is so ordered, and shall be
immediately effective and binding upon the Effective Date of the Plan without further action or
notice by this Court or any other party.
3031. Injunctions. Article 11.9 of the Plan is incorporated into this Confirmation
Order as if set forth in full herein, is found to be fair and reasonable, is hereby approved in its
entirety, and shall be, and hereby is, effective and binding subject to the terms thereof.
3132. Subordination Rights. Article 11.10 of the Plan is incorporated into this
approved in its entirety, and shall be, and hereby is, effective and binding subject to the terms
thereof. Except as provided in the Plan, distributions under the Plan to the various Classes
thereunder shall not be subject to levy, garnishment, attachment or like legal process by any
Holder of a Claim by reason of any subordination rights or otherwise, so that each Holder of a
Claim shall have and receive the benefit of the distributions in the manner set forth in the Plan.
3233. Cancellation of Old SUNE Securities and Agreements. Article 6.12 of the
Plan is incorporated into this Confirmation Order as if set forth in full herein, is found to be fair
and reasonable, is hereby approved in its entirety, and shall be, and hereby is, effective and
binding subject to the terms thereof.
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Second Lien Litigation
3334. Second Lien Litigation. Notwithstanding anything to the contrary in this
Confirmation Order, Article XV of the Plan is incorporated into the Confirmation Order as if set
forth fully herein.
3435. Notwithstanding anything to the contrary that may be set forth (or may be
construed or argued to be set forth) in the Plan, the Disclosure Statement, or this Confirmation
Order, nothing in the Plan or this Confirmation Order shall impair any defenses, claims,
counterclaims, or rights that any third parties may have, and such defenses, claims,
counterclaims, or rights (including, without limitation, any rights to seek indemnity, and any
rights to seek setoff or recoupment, under any contract or agreement, or under applicable law or
equity) with respect to the Second Lien Litigation (and any defenses thereto) are preserved and
not impaired.
Reservation of Rights
3536. Notwithstanding anything in the Plan or this Confirmation Order to the
contrary: (i) the Debtors and Reorganized Debtors hereby ratify and affirm that nothing in the
Plan or this Confirmation Order shall impair or modify any of the rights, remedies, and/or
defenses of Aspen American Insurance Company, Aspen Insurance UK Limited, Aspen Specialty
Insurance Company (collectively, Aspen) under or in connection with (a) any surety bonds
executed by Aspen after the Petition Date at the request and/or on behalf of Debtors (collectively,
the Bonds), (b) the General Agreement of Indemnity dated August 29, 2016 entered into by
and among Debtors and Aspen, as may be amended, modified, supplemented or otherwise
revised (the Indemnity Agreement), and (c) all collateral, including but not limited to any
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letters of credit and the proceeds thereof (collectively, the Collateral), pledged by Debtors to
Aspen as security for the Debtors obligations under the Bonds and Indemnity Agreement; (ii) the
discharge or release of any Claim in the Plan or this Confirmation Order, including under Article
XI of the Plan, shall not release, discharge, preclude or enjoin any obligation of any of the
Debtors (prior to the Effective Date) or the Reorganized Debtors (on and after the Effective Date)
to Aspen under or in connection with the Bonds, Indemnity Agreement, Collateral or the
common law of suretyship as applicable thereto; (iii) all Collateral on which Aspen had a
perfected lien as of the Effective Date shall remain in place to secure all payment and
performance obligations of the Debtors and the Reorganized Debtors solely to the extent
provided for under any such agreements among the Debtors and/or the Reorganized Debtors and
Aspen; and (iv) the Reorganized Debtors hereby affirm, ratify and agree to be bound by the
Indemnity Agreement and related agreements in place, as of the Effective Date.
3637. No provision of the Confirmation Order or the Plan shall authorize (i) the
assumption, or assumption and assignment, or rejection of the Software End-User License
Agreement (the License Agreement) between SunEdison, Inc. and SAP America, Inc. (SAP);
or (ii) the transfer of any software or other proprietary information licensed by SAP. Any
assumption, assignment, and/or and cure amount issues related to the License Agreement shall be
resolved by agreement between SAP and the Debtors or, if no agreement can be reached, by
further order of the Court upon adequate notice to SAP, which shall have an opportunity to
respond. If within thirty (30) days following the Effective Date, the Debtors have not assumed
the License Agreement by resolution with SAP or filed a motion to assume the License
Agreement, the License Agreement shall be rejected as of such date. Notwithstanding the
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foregoing, the Debtors shall have the right to file a motion to reject the License Agreement at any
time prior to thirty (30) days following the Effective Date upon notice to SAP. Upon rejection of
the License Agreement, the Debtors shall comply with the end of term duties set forth in 5.4 of
the License Agreement and provide a written certification to SAP as to compliance. All rights
and remedies of SAP arising under the License Agreement are preserved. All parties rights to
object to or challenge any Claims relating to rejection are reserved.
38. Notwithstanding anything to the contrary, nothing in the Plan or
Confirmation Order (i) assumes or assigns any contracts between the Debtors and Oracle
America, Inc., successor in interest to Taleo Corporation and Hyperion Solutions Corporation
(collectively, Oracle), (ii) transfers any licenses thereunder to any third party, or (iii) expands
the scope of the current license agreements between the Debtors and Oracle.
39. Nothing in the Plan or Confirmation Order shall authorize the assumption,
assumption and assignment, or rejection of the Cigna Agreements (as defined in the Limited
Objection of Cigna Entities to the First Amended Joint Plan of Reorganization of SunEdison,
Inc. and its Debtor Affiliates [Docket No. 3587] (Cigna Objection)). Notwithstanding the
foregoing, the Debtors reserve the right to reject the Cigna Agreements provided that they give
21 days written notice of any such rejection to Cigna. This fully resolves the Cigna Objection.
Notice and Other Provisions
3740. Notice of Confirmation Order and Occurrence of Effective Date. On or
before the tenth (10th) day following the occurrence of the Effective Date, the Debtors shall
serve notice of entry of this Confirmation Order and occurrence of the Effective Date pursuant to
Bankruptcy Rules 2002(f)(7), 2002(k), and 3020(c), on (a) known Holders of Claims and
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Interests, (b) parties that requested notice in accordance with Bankruptcy Rule 2002, and (c) all
other parties included in the Debtors creditor and notice party matrix, by causing a notice of this
Confirmation Order and the occurrence of the Effective Date in substantially the form of the
notice annexed hereto as Exhibit B (the Notice of Effective Date), which form is hereby
approved, to be delivered to such parties by first class mail, postage prepaid. The Notice of
Effective Date shall also be published in The New York Times, San Francisco Chronicle,
Houston Chronicle, Oregonian, The Wall Street Journal, San Mateo Daily Journal, and St. Louis
Post-Dispatch. Notice need not be given or served under the Bankruptcy Code, the Bankruptcy
Rules, or this Confirmation Order to any Entity to whom the Debtors mailed a notice of the Bar
Date or Confirmation Hearing, but received such notice returned marked undeliverable as
addressed, moved - left no forwarding address, forwarding order expired, or similar reason,
unless the Debtors have been informed in writing by such Person of that Persons new address.
The notice described herein is adequate and appropriate under the particular circumstances of the
Chapter 11 Cases, and no other or further notice is necessary.
3841. Authorization to Consummate. Notwithstanding Bankruptcy Rule 3020(e),
but subject to Article XII of the Plan, the Debtors are authorized to consummate the Plan upon or
any time after entry of this Confirmation Order.
3942. Plan Modifications. Subject to certain restrictions and requirements set
forth in section 1127 of the Bankruptcy Code and Bankruptcy Rule 3019 and those restrictions
on modifications set forth in the Plan, the Debtors, with the consent of (a) the Supporting Second
Lien Parties and (b) the Creditors Committee (with respect to those portions of the Plan that
affect the Creditors Committee or any Holder of General Unsecured Claims), may revoke or
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withdraw, alter, amend, or modify the Plan and the Plan Supplement one or more times after
Confirmation, and to the extent necessary, may, with the consent of (x) the Supporting Second
Lien Parties and (y) the Creditors Committee (with respect to those portions of the Plan that
affect the Creditors Committee or any Holder of General Unsecured Claims), in each case such
consent not to unreasonably be withheld or delayed, institute proceedings in the Bankruptcy
Court to remedy any defect or omission or reconcile any inconsistencies in the Plan, the
Disclosure Statement, or this Confirmation Order, and such matters as may be necessary to carry
out the purposes and effects of the Plan and this Confirmation Order.
4043. Failure to Consummate Plan and Substantial Consummation. If the
Effective Date does not occur, then the Plan, any settlement or compromise embodied in the
Plan, the assumption or rejection of executory contracts or unexpired leases effected by the Plan,
and any document or agreement executed pursuant to the Plan, shall be null and void ab initio.
In such event, nothing contained in the Plan or this Confirmation Order, and no acts taken in
preparation for consummation of the Plan, shall, or shall be deemed to, (a) constitute a waiver or
release of any Claims, Interests in, or Causes of Action by or against the Debtors or any other
Person, (b) prejudice in any manner the rights and defenses of the Debtors, the Holder of a Claim
or Interest, the Creditors Committee, or any Person in any further proceedings involving the
Debtors, (c) constitute an admission, acknowledgement, offer, or undertaking of any sort by the
Debtors, the Creditors Committee, or any other Person, or (d) be construed as a finding of fact or
conclusion of law with respect thereto.
4144. Dissolution of Creditors Committee. Effective on the Effective Date, the
Creditors Committee shall dissolve automatically, and the members thereof (solely in their
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capacities as Creditors Committee members) shall be released, exculpated and discharged from
all their duties relating to the Chapter 11 Cases in accordance with Article 11 of the Plan;
provided, however, that the Creditors Committee shall continue to exist and its Professionals
shall continue to be retained and entitled to reasonable compensation, without further order of the
Court, with respect to: (1) the preparation and prosecution of any final fee applications of the
Creditors Committees Court approved Professionals and (2) all final fee applications filed with
the Bankruptcy Court.
4245. References to Plan Provisions. The failure to include or specifically
reference any particular provision of the Plan in this Confirmation Order shall not diminish or
impair the effectiveness of such provision, it being the intent of the Court that the Plan be
confirmed in its entirety.
4346. Exhibits. Each reference to a document, agreement or summary description
that is in the form attached as an Exhibit to the Plan in this Confirmation Order, in the Findings
of Fact and Conclusions of Law, or in the Plan shall be deemed to be a reference to such
document, agreement or summary description in substantially the form of the latest version of
such document, agreement or summary description filed with the Court (whether filed as an
attachment to the Plan or filed separately).
4447. Plan and Confirmation Order Mutually Dependent. The provisions of this
Confirmation Order and the provisions of the Plan are hereby deemed nonseverable and mutually
dependent.
4548. Confirmation Order Supersedes. Except as expressly provided in the Plan
or this Confirmation Order, it is hereby ordered that this Confirmation Order shall supersede any
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orders of this Court issued prior to the Confirmation Date that may be inconsistent with this
Confirmation Order; provided, however, that to the extent of any conflict or inconsistency
between the terms of this Confirmation Order and the Plan, on the one hand, and the YieldCo
Settlement Agreements and the order approving the YieldCo Settlement Motion [Docket No
3292] (the YieldCo 9019 Order), on the other hand, the terms of the YieldCo 9019 Order and
the YieldCo Settlement Agreements, as applicable, shall govern.
4649. Conflicts Between Confirmation Order and Plan. The provisions of the
Plan and of this Confirmation Order shall be construed in a manner consistent with each other so
as to effect the purposes of each; provided, however, that if there is determined to be any
inconsistency between any Plan provision and any provision of this Confirmation Order that
cannot be so reconciled, then, solely to the extent of such inconsistency, the provisions of this
Confirmation Order shall control.
4750. Retention of Jurisdiction. Pursuant to sections 105(a) and 1142 of the
Bankruptcy Code, and notwithstanding the entry of this Confirmation Order or the occurrence of
the Effective Date, this Court, except as otherwise provided in the Plan or herein, shall retain
jurisdiction over all matters arising out of, and related to, the Chapter 11 Cases and the Plan to
the fullest extent permitted by law, including, but not limited to, the matters set forth in Articles
VII, XI, and XIII of the Plan.
4851. Notwithstanding anything to the contrary in this Order, the Plan, or any
Plan Supplement, nothing in the schedule of Retained Causes of Action (Exhibit 6.20 of the Plan
Supplement) [Docket No. 3522] shall preclude and party from asserting any available defense to
any retained cause of action asserted by or on behalf of the Debtors.
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[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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Dated: New York, New York

July ___, 2017
_____________________________________
UNITED STATES BANKRUPTCY JUDGE
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EXHIBIT A
FIRSTSECOND AMENDED PLAN OF REORGANIZATION OF SUNEDISON, INC.

AND ITS DEBTOR AFFILIATES

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EXHIBIT B
NOTICE OF EFFECTIVE DATE
-
1470035-NYCSR03A - MSW
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SUNE Settlement

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16-10992-smb Doc 3703 Filed 07/24/17 Entered 07/24/17 22:44:49 Main Document

SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP

Counsel for Debtors and Debtors in Possession

UNITED STATES BANKRUPTCY COURT

NOTICE OF FILING OF MODIFICATIONS TO PROPOSED CONFIRMATION

Thereto [Docket No. 3649] (the Confirmation Brief),

PLEASE TAKE FURTHER NOTICE that, the Confirmation Brief included a

PLEASE TAKE FURTHER NOTICE that, attached hereto as Exhibit A is a

Dated: July 24, 2017

By: /s/ J. Eric Ivester

Counsel for Debtors and Debtors in Possession

Modifications to Proposed Confirmation Order

IN THE UNITED STATES BANKRUPTCY COURT

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER CONFIRMING

The Court having considered the FirstSecond Amended Joint Plan of

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Declaration), the Declaration of Steven Fleming, a Principal at PricewaterhouseCoopers LLP, In

Declaration of Homer Parkhill, Managing Director at Rothschild, Inc., In Support of First

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cause appearing therefor,

It hereby is DETERMINED, FOUND, ADJUDGED, DECREED AND

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FINDINGS OF FACT AND CONCLUSIONS OF LAW4

A. Jurisdiction; Venue; Core Proceeding (28 U.S.C. 157(b)(2) and

under section 109 of the Bankruptcy Code.

C. Commencement and Administration of the Chapter 11 Cases. On April

the Chapter 11 Cases.

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Order, and no other or further notice is or shall be required.

E. Transmittal of Solicitation Package. On or before June 16, 2017, the

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F. Mailing and Publication of Notice. As described herein and as evidenced

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G. Solicitation. Votes on the Plan were solicited in good faith and in

H. Voting Certification. On []July 18, 2017, the Claims and Solicitation

4B-34, and 4E-110E.

I. Plan Modifications. Subsequent to solicitation, the Debtors made certain

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modifications. No Holder of a Claim or Interest shall be permitted to change its vote as a

the Plan submitted for Confirmation.

K. Plan Compliance with Bankruptcy Code (11 U.S.C. 1129(a)(1)). The

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restructuring of the Chapter 11 Cases (11 U.S.C. 1123(b)).

(a) Proper Classification (11 U.S.C. 1122 and 1123(a)(1)). The

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(b) Specified Treatment of Unimpaired Classes (11 U.S.C.

satisfying section 1123(a)(2) of the Bankruptcy Code.

(c) Specified Treatment of Impaired Classes (11 U.S.C. 1123(a)(3)).

Plan, thereby satisfying section 1123(a)(3) of the Bankruptcy Code.

(d) No Discrimination (11 U.S.C. 1123(a)(4)). Article III of the Plan

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(e) Implementation of the Plan (11 U.S.C. 1123(a)(5)). Article VI of

satisfying section 1123(a)(5) of the Bankruptcy Code.

(f) Nonvoting Equity Securities (11 U.S.C. 1123(a)(6)). Article 6.15

(g) Selection of Officers and Directors (11 U.S.C. 1123(a)(7)).

Supplement [Docket No. []3673]. The appointment, employment, or manner of selection of

public policy. Thus, section 1123(a)(7) of the Bankruptcy Code is satisfied.

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(h) Additional Plan Provisions (11 U.S.C. 1123(b)). The Plans

L. Debtors Compliance with Bankruptcy Code (11 U.S.C. 1129(a)(2)).

satisfying section 1129(a)(2) of the Bankruptcy Code.

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Code is satisfied with respect to the Plan.